As Berkheimer and Aatrix Pass the Two-Year Mark, Alice Invalidation Rates Remain Lower at Both Rule 12 and Summary Judgment

RPX data show that Alice invalidation rates remain significantly lower as a result of the Federal Circuit’s February 2018 decisions in Berkheimer and Aatrix—including challenges decided at both the Rule 12 and summary judgment stages. From the date of Berkheimer’s issuance through the end of Q1 2020, just 44% of patents have had claims invalidated at Rule 12, compared to roughly 70% before; and just 38% for summary judgments issued post-Berkheimer, versus 58% previously (excluding the small number of decisions per patent with mixed-by-claim outcomes).

The decline in the overall Alice invalidation rate further underscores the impact of Berkheimer and Aatrix: while 67% of patents that saw Alice rulings before Berkheimer had claims invalidated, the success rate has dropped to 44% for Alice challenges decided since then.

See RPX’s recent first-quarter review for more information on this and other trends from Q1 2020.

Patents Invalidated Under Alice Before and After Berkheimer by Procedural Stage

Note: Some percentages add up to more than 100%, as patent claims occasionally see multiple Alice rulings with different outcomes. (For example, a claim may be found not invalid in one case and invalid in another.)